Appeal by defendants from order entered 14 March 2005 by Judge
J. Marlene Hyatt in Transylvania County Superior Court. Heard in
the Court of Appeals 11 January 2006.
The Law Office of Stacey B. Bawtinhimer, by Stacey
Bawtinhimer, and Dixon, Doub, Conner & Foster, P.L.L.C., by
Jeffery B. Foster, for plaintiffs-appellees.
Cranfill, Sumner & Hartzog, L.L.P., by Ann S. Estridge and
Meredith T. Black, for defendant-appellant Kathy Haehnel
Roberts & Stevens, P.A., by Christoper Z. Campbell and Cynthia
, and Northup & McConnell, P.L.L.C., by Isaac N.
Northup, Jr. and Elizabeth McConnell for joint defendants-
Tharrington Smith, L.L.P., by Ann L. Majestic and Deborah R.
Stagner, and North Carolina School Boards Association, by
Allison B. Schafer, for Amicus Curiae North Carolina School
Transylvania County Board of Education et al.
and defendant Kathy Haehnel (Haehnel) appeal from an order of the
trial court, which denied, in pertinent part, their motions to
dismiss. We dismiss, as interlocutory, the appeal of all
defendants except Haehnel, and we reverse the trial court's denial
of Haehnel's motion to dismiss.
The complaint alleged, inter alia
, the following facts:
18. The Plaintiff Sean Farrell began attending
the public schools of Transylvania County in
the fall of 1998. Sean has cerebral palsy,
developmental delay, and other disabilities
which qualify him as a student with special
needs. Sean's condition prevents him from
communicating verbally. He has limited ability
to use sign language. As a result of these
special needs, Sean was placed in a
specialized educational environment within the
Defendant School Board's school system.
. . .
20. At the beginning of the 2001-2002 school
year, Sean was placed in a self-contained
classroom at Brevard Elementary School and
Sean's classroom teacher was Defendant Garvin.
In addition to Defendant Garvin, the classroomhas three teacher's aides, two of which were
Defendant Wohlers and Eva Grey.
21. Unlike some of the disabled students in
Defendant Garvin's classroom, Sean was able to
independently feed himself and enjoyed all
varieties of food. He was, according to
Defendants Garvin and Wohlers, a good eater,
liked all kinds of foods, and would always
clean his plate.
22. At the time Sean began attending school
and through August, 2001, he functioned well
within the program, and was a happy, healthy
child, but for his special needs.
23. The Plaintiffs had noticed some
occasional behavior changes in Sean the spring
of 2001[.] [T]hese behaviors disappeared
during summer school when Defendant Wohlers
was not in Sean's classroom.
24. Initially during the 2001-2002 school
year, Defendant Wohlers was absent due to a
surgical procedure, and missed approximately
the first 30 days of school.
. . .
27. Within days of Defendant Wohlers[']
[return to work] in Sean's class, the
Plaintiffs William and Suzanne Farrell began
noticing immediate changes [in] Sean's
behavior reminiscent of those which occurred
in the spring.
. . .
31. . . . [S]ean became depressed, became
severely withdrawn, and anxious, fearful of
food. Sean would cling to his mother and cry
when going to school. This behavior was
unusual in that Sean had always loved and
enjoyed going to school.
. . .
36. The Plaintiffs were eventually told by
Eva Grey, the other teacher's aide in Sean's
classroom, that Sean was being treated
abusively by the Defendant Wohlers. This
a. being force fed by Wohlers at times to the
point of choking on a regular basis;
b. Wohlers yelling at him and using abusive
c. his head being jerked back violently and
hair being pulled while his face was being
d. Defendant Wohlers using a stuffed animal
she knew that Sean was terrified of to
intimidate him to stay on his mat for naptime. 37. Eva Grey informed the Plaintiffs that she
had notified Defendant Haehnel about her
disclosures to the Plaintiffs two days
before the Plaintiffs contacted interim
principal Susan Allred.
. . .
39. Defendant Haehnel and Susan Allred were
assigned to the investigation and informed the
Plaintiffs that they would conduct a thorough
investigation of the alleged abuse.
40. After Defendant Haehnel investigated the
allegations of Eva Grey that Defendant Wohlers
abused Sean, she informed the Plaintiffs that
Eva Grey had made up these allegations because
she was jealous of Defendant Wohlers and
wanted her job. Moreover Defendant Haehnel
indicated that no other individual had
substantiated Eva Grey's allegations and that
Defendant Wohlers was exonerated.
. . .
45. Defendant Haehnel's investigation file
documented that other school personnel and
outside staff had complained about Defendant
Wohlers' abusive behavior towards disabled
students and inappropriate conduct; that
Defendant Garvin's classroom was not properly
supervised; and that Defendant Wohlers based
on Defendant Haehnel's own personal
observations acted inappropriately towards
students in Defendant Garvin's classroom.
46. Teacher's aide, Roxanne Jones, who also
worked in the self-contained classroom
witnessed Defendant Wohlers, in the presence
of Defendant Garvin, and under the authority,
direction or control of Defendants Garvin,
Morgan, Kiviniemi, Holliday, and the School
a. yell at the children;
b. tell them to shut up;
c. pinch them behind their ears causing
d. squeeze them under the arms causing
e. stuff food into students' mouths;
f. hold their head in a headlock, continue to
stuff food into students' mouths until they
gagged during which time one student
g. verbally intimidate the children by yelling
at them until they broke down crying;
h. hold their foreheads roughly and yank
their heads back in order to wash their facein the bathroom; and,
i. made inappropriate sexual and lewd
comments in front of the children.
. . .
67. Sean's condition became so severe that he
was admitted to Mission Hospital from January
16 to January 24, 2002 for IV therapy and a
thorough medical workup to find a cause for
his severe anxiety associated with food.
. . .
71. These tests indicated that there was no
physical reason for Sean's failure to eat and
drink. The attending pediatric physician and
residents from Mission Hospital, including the
gastro-intestinal doctor and occupational
therapists all agreed that Sean's eating
problems were consistent with severe anxiety
and depression due to suspected child abuse in
. . .
82. Defendant Wohlers was subsequently
terminated by Transylvania County Schools in
part because of more abuse allegations of
another disabled student and a pattern of
inappropriate conduct towards students.
83. After several months, Sean was placed
back in Defendant Garvin's classroom with his
familiar peers, routine, and staff. Defendant
Wohlers was no longer an aide in Sean's
classroom and he started eating again.
. . .
85. Plaintiffs are informed and believe, and
therefore allege, that the above described
ongoing pattern and practice of physical and
verbal abuse, by definition, are not
appropriate to achieve educational goals, and
they instead result in lasting and irreparable
damage to Plaintiff Sean Farrell and violated
his property right to a public education as
guaranteed by the North Carolina Constitution.
Based on these allegations and others, Suzanne and William Farrell
(collectively plaintiffs) filed suit individually and on behalf
of the minor child Sean Farrell (Sean) against
their complaint, plaintiffs asserted causes of action for negligent
supervision, negligent hiring and retention, negligent infliction
of emotional distress, and violation of substantive due processunder 42 U.S.C. § 1983. The plaintiffs also sought punitive
damages. The Transylvania County Board of Education filed a motion
to dismiss, covering all defendants sued in their official
capacities and Donna Garvin (Garvin). Defendants Haehnel and
Jane Wohlers (Wohlers) also filed motions to dismiss claims
against them in their individual capacities. The trial court
granted motions to dismiss the punitive damages claims against the
School Board and any defendant sued in his or her official
capacity. As to all other claims, the trial court denied
defendants' motions to dismiss. From the denial of these motions,
 Plaintiffs have filed a motion to dismiss, as
interlocutory, the entire appeal of the joint defendants and the
appeal of Haehnel except for the issues of public official and
qualified immunity. Generally, a denial of a motion pursuant to
N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), is an interlocutory order
from which no appeal may be taken immediately. Bardolph v.
, 112 N.C. App. 190, 192-93, 435 S.E.2d 109, 112 (1993)
(citation omitted). However, [o]rders denying dispositive motions
based on public official's immunity affect a substantial right and
are immediately appealable. Summey v. Barker
, 142 N.C. App. 688,
689, 544 S.E.2d 262, 264 (2001). A substantial right is affected
because [a] valid claim of immunity is more than a defense in a
lawsuit; it is in essence immunity from suit. Were the case to be
erroneously permitted to proceed to trial, immunity would be
effectively lost. Slade v. Vernon
, 110 N.C. App. 422, 425, 429S.E.2d 744, 746 (1993), implied overruling based on other grounds
Boyd v. Robeson County
, 169 N.C. App. 460, 621 S.E.2d 1 (2005).
Accordingly, we address Haehnel's assignments of error pertaining
to immunity and the related issue of punitive damages; however, we
decline to address the other defendants' assignments of error,
given that they are interlocutory. Houpe v. City of Statesville
128 N.C. App. 334, 340, 497 S.E.2d 82, 87 (1998) (standing for the
proposition that when this Court addresses a matter, although
interlocutory, because it affects a substantial right, it is in our
discretion whether to address other arguments not affecting a
 On appeal, Haehnel argues that the trial court erred in
denying her motion to dismiss as to the negligence claims because
the face of plaintiffs' complaint reveals an insurmountable bar to
recovery as the allegations establish that Dr. Haehnel, a public
official, is immune from plaintiffs' claims. We agree that
Haehnel is immune from plaintiffs' negligence claims in her
individual capacity under the doctrine of public official immunity.
On appeal from a motion to dismiss under Rule 12(b)(6), this
Court reviews de novo
whether, as a matter of law, the allegations
of the complaint . . . are sufficient to state a claim upon which
relief may be granted. Harris v. NCNB Nat. Bank of North
, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). We
consider the allegations in the complaint true, construe the
complaint liberally, and only reverse the trial court's denial of
a motion to dismiss if plaintiff is entitled to no relief under anyset of facts which could be proven in support of the claim. Hyde
v. Abbott Laboratories., Inc.
, 123 N.C. App. 572, 575, 473 S.E.2d
680, 682 (1996).
Under the doctrine of public official immunity, [w]hen a
governmental worker is sued individually, or in his or her personal
capacity, our courts distinguish between public employees and
public officials in determining negligence liability. Hare v.
, 99 N.C. App. 693, 699-700, 394 S.E.2d 231, 236 (1990)
(citations omitted). Officers exercise a certain amount of
discretion, while employees perform ministerial duties. Cherry v.
, 110 N.C. App. 478, 480, 429 S.E.2d 771, 773 (1993)
(citation omitted). Discretionary acts are those requiring
personal deliberation, decision[,] and judgment. . . . Ministerial
duties, on the other hand, are absolute and involve merely the
execution of a specific duty arising from fixed and designated
facts. Isenhour v. Hutto
, 350 N.C. 601, 610, 517 S.E.2d 121, 127
(1999) (citations and quotations omitted). Additionally, [t]o
constitute an office, as distinguished from employment, it is
essential that the position must have been created by the
constitution or statutes of the sovereignty, or that the sovereign
power shall have delegated to an inferior body the right to create
the position in question. State v. Hord
, 264 N.C. 149, 155, 141
S.E.2d 241, 245 (1965).
Under these guidelines, this Court has recognized that school
officials such as superintendents and principals perform
discretionary acts requiring personal deliberation, decision, andjudgment. Gunter v. Anders
, 114 N.C. App. 61, 67-68, 441 S.E.2d
167, 171 (1994). We now consider the issue of first impression,
whether a school official serving in a supervisory role, other than
a superintendent or school principal, qualifies as a public
official. Specifically, we consider whether Haehnel's role as
Director of Federal Programs qualifies her as a public official.
The complaint in the case sub judice
acknowledges that Haehnel is
the Director of Federal Programs for Transylvania County schools
and has the responsibilities of ensuring that students with
disabilities in the School System are treated in compliance with
the requirements of state law and the North Carolina Constitution
and supervising all special education teachers, aides in special
education classrooms, and related service providers in the entire
special education program for Transylvania County Schools.
Accordingly, Haehnel qualifies as a school administrator under
N.C. Gen. Stat. § 115C-287.1(a)(3) (2005). School
administrator[s] include principals, assistant principals,
supervisors, and directors whose major function includes the
direct or indirect supervision of teaching or of any other part of
the instructional program. Id
. Given that Haehnel performs,
within her supervisory role, discretionary acts involving personal
deliberation, decision, and judgment in a position created by the
statutes of our State, we hold that she is a public official who
qualifies for public official immunity.
Our Supreme Court has said:
It is settled law in this jurisdiction that a
public official, engaged in the performance ofgovernmental duties involving the exercise of
judgment and discretion, may not be held
personally liable for mere negligence in
respect thereto. The rule in such cases is
that an official may not be held liable unless
it be alleged and proved that his act, or
failure to act, was corrupt or malicious . . .
or that he acted outside of and beyond the
scope of his duties.
Smith v. Hefner,
235 N.C. 1, 7, 68 S.E.2d 783, 787 (1952)
(citations omitted). Moreover, a conclusory allegation that a
public official acted willfully and wantonly should not be
sufficient, by itself, to withstand a Rule 12(b)(6) motion to
dismiss. The facts alleged in the complaint must support such a
conclusion. Meyer v. Walls
, 347 N.C. 97, 114, 489 S.E.2d 880, 890
(1997). See also Dalenko v. Wake County Dept. of Human Services
157 N.C. App. 49, 56, 578 S.E.2d 599, 604 (2003) (holding a
complaint's allegations amounted to conclusions of law and
deductions of fact and were insufficient to overcome public
official immunity). The only allegation that plaintiffs made
regarding Haehnel acting with corruption, maliciousness, or beyond
the scope of her duties is found in the 42 U.S.C. § 1983 portion of
the complaint. The allegation stated, The actions of Defendants,
as described above, were malicious, deliberate, intentional, and
embarked upon with the knowledge of, or in conscious disregard of,
the harm that would be inflicted upon Plaintiff. This allegation
is conclusory and insufficient to overcome Haehnel's public
official immunity. See Meyer, supra.
Accordingly, the trial court
erred in denying Haehnel's motion to dismiss the negligence claims
against her in her individual capacity.  In regard to the 42 U.S.C. § 1983 claims, Haehnel argues
that she is immune from suit in her individual capacity under the
theory of qualified immunity. Qualified immunity protects public
officials from personal liability for performing official,
discretionary functions if the conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known. Vest v. Easley
, 145 N.C. App.
70, 75, 549 S.E.2d 568, 573 (2001) (citations omitted).
that plaintiffs properly pled its claim for relief
pursuant to 42 U.S.C. § 1983, plaintiffs' allegations, nonetheless,
fail to establish any conduct by Haehnel that violated clearly
established statutory or constitutional rights. Accordingly, we
hold that the trial court erred in denying Haehnel's motion to
dismiss the claims asserted against her under 42 U.S.C. § 1983 in
her individual capacity.
Because Haehnel is entitled to public official immunity as to
the negligence claims and qualified immunity as to 42 U.S.C. § 1983
claims, the trial court erred in denying Haehnel's motion to
dismiss plaintiffs' claims for punitive damages against her in her
individual capacity. See
N.C. Gen. Stat. § 1D-15(a) (2005)
([p]unitive damages may be awarded only if the claimant proves
that the defendant is liable for compensatory damages). Having
held that Haehnel is immune, we need not address her other argument
on appeal. Moreover, since Haehnel has not argued her remaining
assignments of error, we deem them abandoned pursuant to N.C. R.
App. P. 28(b)(6) (2005).
Reversed in part; dismissed in part.
Judges BRYANT and SMITH concur.
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